# BAIJ NATH PRASAD TRIPATHI v. THE STATE OF BHOPAL

- **Citation:** [1957] 1 S.C.R. 650
- **Court:** Supreme Court of India
- **Decided:** 1956-03-07
- **Bench:** S. R. Das C.J, VENKATARAMA AY'lAR, B. P. Sinha, S. K. DAs, GAJENDRi .. GADI'-Ak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baij-nath-prasad-tripathi-v-the-state-of-bhopal-1356
- **Pages:** 8

## Headnote

C1·iminal trial-Prosecut:'on
for offences under s. 161 of the
!11dian Penal Code and s. 5 of the Prevention of Corruption ActProceedings quashed fur waut of proper sanction-Fresh sanctionSecond trial for same offences-IVhether barred-Constitution of India,.
Art. 20 (2)-Code of Criminal Procedure, s. 403.
The accused was tried and convicted by a Special Judge for
offences under s. 161 of the
Indian
Penal Code and s. 5 of the
Prevention of Corruption Act.
On appeal the whole proceedings.
were quashed as being ab initio invalid for want of proper sanction.
The authorities accorded fresh sanction and directed the accused
to be tried by a Special Judge for the same offences.
It wascontended by
the accused that the second trial was barred
by
Art. 20 (2) of the Constitution of India and by s. 40.~ of the Code
of Criminal Procedure.
Held. that the trial was not barred. Art. 20 (2) had no application in the case.
'fhe accused was not being prosecuted
and
ptinished for the sa1ne offence more than once, the earlier proceedings h.J.ving been held to be null and void.
The accused was not
tried in the earlier proceedings by a Court of competent jurisdiction,..
nor was there
any conviction or
acquittal in force
within the
1neaninq of s. 403(1) of the Code to stand as a bar against the trial:
for the sa1ne offence.
Yusofalli Mui/a v. The King, A.LR. (1949) P. C. 264,
Basdea
Agtrrwalla v. King-Emperor, (1945) F.C.R. 93 and Budha Mal v.
State of Delhi, Criminal Appeal No. 17 of 1952, decided on October
3, 1952, followed.
ORIGINAL
JuRrso1cTION : Petition No. 115 of 1956,
and Petition No. 132 of 1956.
Petitions under Article
32 of the Constitution of
India for the enforcement of fundamental rights.
B. D. Sharma, for the petitioners,
C. K. Daphtary, Solicitor-General
of
India, Porus:
A. Mehta and R. H. Dhebar, for the respondents.
S.C.R.
SUPREME COURT REPORTS
651
1957. February 13.
The Judgment of the Court was
delivered by
S. K. DAs J.-These two _petitions for the issue of
appropriate
writs restraining
the
respondents
from
prosecuting and trying the
two petitioners
on certain
criminal
charges
in
circumstances to
be
presently
stated, raise the same question
of law
and have been
heard together. This judgment will govern them both.
Baij Nath Prasad Tripathi,
petitioner
in
Petition
No. 115 of 1956, was a Sub-Inspector of
Police in the
then State of Bhopal.
He was prosecuted in the Court
of Shri B. K. Puranik,
Special
Judge,
Bhopal,
and
convicted of offences
under s. 161, Indian Penal Code,
and s. 5 of the Prevention of Corruption Act, 1947. He
was sentenced to nine months' rigorous
imprisonment
on each count.
He preferred an appeal against the
conviction and sentences to the
Judicial Commissioner
of Bhopal.
The Judicial Commissioner
held
by his
judgment dated
March 7, 1956, that no sanction according to law had been given for the
prosecution of the
petitioner and the Special Judge had no jurisdiction to
take cognizance of the case ;, the trial was accordingly
ab initia invalid and liable to be quashed. He accordingly set aside the conviction and quashed the entire
proceedings before the Special Judge. He then observed:
"The parties would thus be relegatecf to the position as
if no legal charge-sheet had been submitted against the
appellant." On April 4, 1956, the Chief Commissioner
of
Bhopal
passed
an order
under s. 7(2)
of the
Criminal Law Amendment
Act, 1952, (No. XL VI of
1952) that the petitioner shall be tried by Shri S. N. Shrivastava, Special
Judge, Bhopal,
for certain
offences
under
the
Prevention of
Corruption Act read with
s. 161,
Indian Penal Code. The case of the petitioner
is that he cannot be prosecuted and tried again for the
same offences under the aforesaid
order of
April 1,
1956.
Sudhakar Dube, petitioner in Petition No. 132 of
1956, was also a Sub-Inspector of Police in the then
State of Bhopal. He was also prosecuted in the Court
of Shri B. K. Puranik,
Special
Judge,
Bhopal, on a
1957
Bdij }{ ath Prasad
Tripa;hi
"·
The Stale of B

## Text

650
SUPREME COURT REPORTS
BAIJ NATH PRASAD TRIPATHI
v.
THE STATE OF BHOPAL
(and connected petition)
[1957l
(S. R. DAS C.J., VENKATARAMA AY'lAR, B. P. SINHA,
S. K. DAs and GAJENDRi .. GADI'-Ak JJ.)
C1·iminal trial-Prosecut:'on
for offences under s. 161 of the
!11dian Penal Code and s. 5 of the Prevention of Corruption ActProceedings quashed fur waut of proper sanction-Fresh sanctionSecond trial for same offences-IVhether barred-Constitution of India,.
Art. 20 (2)-Code of Criminal Procedure, s. 403.
The accused was tried and convicted by a Special Judge for
offences under s. 161 of the
Indian
Penal Code and s. 5 of the
Prevention of Corruption Act.
On appeal the whole proceedings.
were quashed as being ab initio invalid for want of proper sanction.
The authorities accorded fresh sanction and directed the accused
to be tried by a Special Judge for the same offences.
It wascontended by
the accused that the second trial was barred
by
Art. 20 (2) of the Constitution of India and by s. 40.~ of the Code
of Criminal Procedure.
Held. that the trial was not barred. Art. 20 (2) had no application in the case.
'fhe accused was not being prosecuted
and
ptinished for the sa1ne offence more than once, the earlier proceedings h.J.ving been held to be null and void.
The accused was not
tried in the earlier proceedings by a Court of competent jurisdiction,..
nor was there
any conviction or
acquittal in force
within the
1neaninq of s. 403(1) of the Code to stand as a bar against the trial:
for the sa1ne offence.
Yusofalli Mui/a v. The King, A.LR. (1949) P. C. 264,
Basdea
Agtrrwalla v. King-Emperor, (1945) F.C.R. 93 and Budha Mal v.
State of Delhi, Criminal Appeal No. 17 of 1952, decided on October
3, 1952, followed.
ORIGINAL
JuRrso1cTION : Petition No. 115 of 1956,
and Petition No. 132 of 1956.
Petitions under Article
32 of the Constitution of
India for the enforcement of fundamental rights.
B. D. Sharma, for the petitioners,
C. K. Daphtary, Solicitor-General
of
India, Porus:
A. Mehta and R. H. Dhebar, for the respondents.
S.C.R.
SUPREME COURT REPORTS
651
1957. February 13.
The Judgment of the Court was
delivered by
S. K. DAs J.-These two _petitions for the issue of
appropriate
writs restraining
the
respondents
from
prosecuting and trying the
two petitioners
on certain
criminal
charges
in
circumstances to
be
presently
stated, raise the same question
of law
and have been
heard together. This judgment will govern them both.
Baij Nath Prasad Tripathi,
petitioner
in
Petition
No. 115 of 1956, was a Sub-Inspector of
Police in the
then State of Bhopal.
He was prosecuted in the Court
of Shri B. K. Puranik,
Special
Judge,
Bhopal,
and
convicted of offences
under s. 161, Indian Penal Code,
and s. 5 of the Prevention of Corruption Act, 1947. He
was sentenced to nine months' rigorous
imprisonment
on each count.
He preferred an appeal against the
conviction and sentences to the
Judicial Commissioner
of Bhopal.
The Judicial Commissioner
held
by his
judgment dated
March 7, 1956, that no sanction according to law had been given for the
prosecution of the
petitioner and the Special Judge had no jurisdiction to
take cognizance of the case ;, the trial was accordingly
ab initia invalid and liable to be quashed. He accordingly set aside the conviction and quashed the entire
proceedings before the Special Judge. He then observed:
"The parties would thus be relegatecf to the position as
if no legal charge-sheet had been submitted against the
appellant." On April 4, 1956, the Chief Commissioner
of
Bhopal
passed
an order
under s. 7(2)
of the
Criminal Law Amendment
Act, 1952, (No. XL VI of
1952) that the petitioner shall be tried by Shri S. N. Shrivastava, Special
Judge, Bhopal,
for certain
offences
under
the
Prevention of
Corruption Act read with
s. 161,
Indian Penal Code. The case of the petitioner
is that he cannot be prosecuted and tried again for the
same offences under the aforesaid
order of
April 1,
1956.
Sudhakar Dube, petitioner in Petition No. 132 of
1956, was also a Sub-Inspector of Police in the then
State of Bhopal. He was also prosecuted in the Court
of Shri B. K. Puranik,
Special
Judge,
Bhopal, on a
1957
Bdij }{ ath Prasad
Tripa;hi
"·
The Stale of Bho~al
S. K. Dar].
l95i
Baij N atA Prasad
Tripalbi
v.
Tiii Slat• of Bhop.i
S. K.D.,].
652
SUPREME COURT REPORTS
[1957]
charge of having accepted illegal gratification for showing official
favour to
one
Panna Lal.
The learned
Special Judge by an order dated January 10, 1956, came
to the conclusion tbat no legal sanction for the prosecution of the petitioner had been given by the competent
authority and the sanctiop
given
by
the
InspectorGeneral of Police was not valid in
law; he therefore
held that
the whole
trial was null and
void
and he
could not take cognizance of the offene<s in question.
Accordingly he quashed the proceedings.
On February
7. 1956, the Chief Secretary to the Government of
Bhopal accorded fresh sanction for the prosecution
of
the petitioner for offences under s. 161,
Indian
Penal
Code,, and s. 5 of the
Prevention of
Corruption
Act.
The petitioner then moved this
Court for
appropriate
writs restraining the respondents from prosecuting and
trying him for the offences stated in the fresh sanction
aforesaid.
On behalf of both the petitioners the contention is
that by reason of cl. (2) of Art. 20 of the
Constitution
and s. 403 of the
Code of Criminal
Procedure,
the
petitioners cannot
now
be tried
for the offences
in
question.
It is necessary
to read
here
some of the
relevant sections bearing on the point at issue.
Section 6 of the
Criminal
Law Amendment
Act, 1952
(prior to the amendment made in 1955), so far as is
relevant for our· purpose, is in these terms :
"6. (1) The State Government may, by notification
in the Official Gazette, appoint as many special Judges
as may be necessary for such area or areas as may be
specified in the notification to try the following offences,
namely:-
(a) an
offence
punishable
under
section
161,
section 165, or section 165-A of the Indian Penal Code
(Act XLV of 1860), or sub-section (2) of section 5 of the
Pre,·ention of Corruption Act, 1947 (II of 1947) ;
(b) any conspiracy to commit or any attempt to
commit or any abetment of any of the offences specified
in clause (a)".
Sub-section ( 1) of s. 7 of the same Act lays down :
"7. (I) Notwithstanding anything contained in the
Code of Criminal Procedure, 1898 (Act V of 1898) or in
S.C.R.
SUPREME COURT REPORTS
653
any other law the offences specified in sub-section ( 1)
of section 6 shall be triable by special Judges only".
The same section also states that when trying any
case, a special Judge may also try any offence other
than an offence specified in s. 6 with which the accused
may, under the Code of
Criminal Procedure, 1898, be
charged at the same trial.
It is not necessary for our
purpose to read the other sections of the Criminal Law
Amendment
Act, 1952.
We then go to the
Prevention of Corruption
Act, 1947,
section
6 whereof is
relevant
for our
purpose.
That section
is in these
terms:
"6. (1) No
Court shall take
cognizance
of an
offence punishable under section 161 or section 165 of
the
Indian
Penal
Code or under
sub-section (2) of
section 5 of this
Act, alleged to have been committed
by a public servant exce;it with the previous sanction,-
( a) in the case of a person who is employed in
connection with the affairs of the
Union and is not
removable from his office save by or with the sanction
of the
Central
Government ........ , [of the] Central
Government ;
(b) in the case of a person who is employed in
connection
with the
affairs
of [a State] and
is not
removable from his office save by or with the sanction
of the · State
Government. ............. , [of the] State
Government ;
( c) in the
case of
any other
person,
of
the
authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt
arises whether the previous sanction as required under
sub-section (I) should be given
by the
Centra: or
State
Government or any other authority, such sanction shall be given by that
Government or authority
which
would have been
competent
to
remove
the
public servant from his office at the time when the
offence was alleged to have been committed."
It is under this section that sanction was necessary
for the prosecution of the
petitioners.
Clause
(2) of
Art. 20 of the Constitution, on which the petitioners
rel v, states :
1957
Bisij Nath Priullli
TriJiatlti
v.
Tiii Stat. of BllOpiil
S. K.Das].
1957
Baij Nat.~ Prasad
Tripa1hi
v.
The Stale af B!wpal
S. K. Das].
654
SUPREME COURT REPORTS
119571
"No person shall be prosecuted and punished
for
the same offence more than once."
Section 403 (I) of the Code of
Criminal Procedure,
on which learned counsel for the petitioners has placed
the greatest reliance, is in these terms :
"A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted or
acquitted of such
offence shall, while such conviction
or acquittal remains in force, not be liable to be triecl
again for the same offence, nor on the same facts fc,,
any other offence for which a different
charge
from
the one macle against him might have been made under
section 236, or for which he might have been convicted
under section 237."
Now, it is necessary to state that the
point taken
by learned counsel for the petitioners is really concluded by three decisions-(a) one of the Privy
Council,
(b) another of the
Federal Court and ( c) the third of
this
Court itself.
The
Privy
Council decision is in
Yusofalli Mulla v. The King('); the
Federal
Court
decision in Basdeo Agarwal/a v. King-Emperor( ) ; and
the decision of this
Court (not yet reported) was given
in Bud ha Mal v. State of Del.~i ( ') on October 3, 1952.
The Privy
Council decision is directly in point, and it
was there held that the whole basis of s. 403 ( 1) was
that the first trial should have been before a
Court
competent to hear and determine the case
and to
record a verdict of conviction or acquittal ; if the
Court
was not so
competent, as
for example where the
required sanction for the prosecution was not obtained,
it was irrelevant that it
was
competent
to try other
cases of the same class or indeed the case against the
particular
accused
in
different
circumstances,
for
example if a sanction had
been
obtained.
So is the
decision of this
Court where the following observations
were made with regard to the point in question :
"Section 403,
Criminal Procedure
Code,
applies
to cases where the
acquittal order has been made by
a Court of competent jurisdiction but it does not bar
(1) A.!.R. 1949 P.C. 264.
(2)- [1945] F.C.R. 93.
(3) Criminal Appeal No. 17 of 1952 decided on October 3, 1952.
S.C.R.
SUPREME COURT REPORTS
655
a retrial of the accused in cases where such an order
has been made by a court which had no
jurisdiction
to take cognizance of the case.
It is quite
apparent
on this record that in the absence of a valid sanction
the trial of the ;ippellant in the first instance was by
a magistrate who had no jurisdiction to try him."
After the pronouncements made
in the
decisions
referred to above, it is really
unnecessary to embark
on a further or fuller discussion of
the point raised,
except merely to state that we have heard
learned
counsel for the petitioners who made a vain
attempt
with a crusading pertinacity worthy of a better cause,
to show that the Privy
Council decision
was wrong
and the decision of this Court required reconsideration,
and having heard learned counsel in full, we are of
the view that the decisions referred to above state the
legal position correctly. It is clear beyond any doubt
that cl. (2) of Art. 20 of the
Constitution has no application in these two cases.
The
petitioners
are
not
being prosecuted
and punished for the same offence
more than once, the earlier proceedings having been
held to be null and void.
With regard to s. 403, Code
of Criminal Procedure, it is enough to state that the
petitioners were not tried, in the earlier proceedings,
by a Court of competent jurisdiction, nor is there any
conviction or acquittal in force within the meaning of
s. 403 (1) of the Code, to stand as a bar against
their
trial for the same offences.
Learned
counsel
for the
petitioners invited our attention to ss. 190,
191,
192,
529 and 530 of the
Code of
Criminal Procedure and .
submitted that in certain circumstances the Code drew
a
distinction
between
'jurisdiction'
and
'taking
cognizance'.
The whole fabric of the
argument of
learned
counsel
was
founded
on this
distinction.
Assuming, however, that in certain cases one Magistrate may take
C<?gnizance
and another
Magistrate
may try an accused person, it is difficult to appreciate
how any Court can try the petitioners of these
case~
in the absence of a sanction in view of the mandatory
provisions of s; 6 of the Prevention of Corruption
Act,
1947.
If no Court can take cognizance of the offence~
in question without a legal sanction, it is obvious
1957
Baij Nath Prasad
Tri,athi
v.
The Stal• of Bhopal
S. K. Das] ..
1957
B1aij }( alh Pr a rod
Tri;tJthi
v.
T lw St•ll of Bhopal
S. Ir. D111 ].
656
SUPREME COURT REPORTS
[19571
?1a.t ~o . Court can be said to be a Court of competent
1unsd1ct:Jon to try those offences and that any trial in
the absence of such sanction
must be null and void,
and the sections of the Code on which learned counsel
for the petitioners relied have really no
bearing on
the matter.
Section 530 of the Code is really against
the contention of
learned counsel, for it
states, inter
alia, that if any
Magistrate not being empowered by
law to try an offender, tries him, then the proceedings
shall be void.
Section 529 ( e) is merely
an exception
in the matter of taking cognizance of an offence under
s. 190, sub-s. (I), els. (a) and (b) ; it has no bearing in
a case where sanction is necessary and no sanction
m
accordance with law has been obtained.
As part of his arguments, learned counsel for the
petitioners referred · to certain
observations made by
Braund J. in a decision of the Allahabad High Courr,
Basdeo v. Emperor ( 1 ), where the learned
Judge drew
a distinction between 'taking cognizance'
and 'jurisdiction'.
The distinction was drawn in a case where
a Magistrate duly empowered
to
commit cases to the
Sessions Court committed
an
accused person to the
Court of Session in disregard of the provisions of s. 254
of the Code of Criminal Procedure, and the
question
was whether
the irregularity so committed rendered
the Sessions Courr incompetent to try the case.
The
facts there were entirely different from the facts of the
present cases and there was no occasion nor necessity
,for
considering
such
mandatory
prov1s1ons
as
are
contained in s. 6 of the
Prevention of Corruption
Act.
We do not think that
the observations made in that
case can be pressed in service in support of
the argument of learned counsel for the
petitioners in these
cases, treating those observations as though
they laid
down any abstract propositions of law not dependent
on the context of the facts in connection with which
they were made.
Out of deference to learned counsel for the petitioners,
we have
indicated and
considered
very
briefly the
arguments
advanced
before
us.
As we
have said
{1) A.I.R. 1945 All. 340.
S.C.R.
SUPREME COURT REPORTS
657
before, the point is
really concluded by decisions of
the highest
tribunal, · decisions
which correctly lay
down the law.
The result therefore is that these petitions are devoitl of all merit and must be dismissed.
Petitions dismissed.
NISAR ALI
v.
THE ST ATE OF JJTT AR PRADESH
(BHAGWATI, B. P. SINHA and J. L. KAPUR
First information repo1·t-Repon made by accused-Use ofBurden of proof in criminal ,·ases-Witness disbelieved as to part of
his testimony...:... Whether should be 1·ejected in tote>.
A first information
report is not a substantive
piece of
evidence and can onlv be used to corroborate the statement of the
maker under s. 157 ~£ the Evidence ·Act or ID contradict it under
s. 145 of that Act.
It ·cannot be used as evidence against the
maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.
It is a cardinal principle of criminal jurisprudence that the
innocence of an accused person is presumed till otherwise proved.
It is the duty of the prosecution to prove the guilt of the accused
subject to any statutory exception.
·
The ma~im falsus in uno, falms in omnibus has
not received
general
acceptance in different · jurisdictions in India, nor has it
come to occupy the status of a rule of law. It is merely a rule
of caution.
All that it amounts to is tha~ in such cases the testimony may be disregarded and not that it must be disregarded.
The doctrine merely invoh-es the question of weight of evidence
which a court may apply in a given set of circumstances but ·it is
not a mandatory rule of e,·idencc.
CtttMINAL
APPELLATE
JultlsDICTION :
Criminal
Appeal No. 150 of 1956.
Appeal by special leave from the Judgment and
order dated October 18, 1955, of the
Allahabad
High
Court in
Government Appeal No. 60•of 1953 arising
out of the
judgment and order dated July 8, 1952, of
the Court of
Sessions Judge at Bareilly in
Criminal.
Sessions Trial No. 27 of 1952.
Daul•t Ram Prem and P. C. Agarwa/a, for the
appellant.
5-79 S. C. India/59
1957
Baij Nath Prasad
Tripalhi
v.
Tht State of Bhopal
S. ti. Dass J.
1957
F1bruary 14.